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2011
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I. TABLE OF CONTENTS
I. TABLE OF CONTENTS........................................................................................... i
VII. ARGUMENTS
A. The Republic of Repelmuto did not ratify the UNCLOS and is therefore not
bound by its provisions......................................................................................1
A. The Oil Spill in the Gulf of Sedna was solely caused by the negligence of Fahy
Oil Company......................................................................................................4
i. Fahy Oil was not acting under the direction or control of the
Republic of Repelmuto...............................................................5
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ii. Fahy Oil should be held liable for the injuries suffered by the
Federal States of Albacares as a result of the oil spill...............6
C. The actions of the MEA did not amount to a breach of the Republic of
Repelmuto’s International Obligations...............................................................8
D. The Republic of Repelmuto acted in accordance with its obligation to control the
sources of pollution within its jurisdiction..........................................................8
i. The threat posed by the oil spill to the Gulf of Sedna was
sufficiently severe to allow the application of the precautionary
principle..................................................................................................10
ii. The threat posed to the Gulf of Sedna by the use of ChemEx-5000
was scientifically uncertain and therefore allowed the application of the
precautionary principle..........................................................................11
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B. The use of ChemEx-5000 was proportionate to the threat posed to the eco-system
of Repelmuto and Albacares............................................................................11
ii. The diplomatic notes sent by the Republic of Repelmuto to the Federal
States of Albacares did not disclose an intention to provide
compensation...........................................................................................14
B. The oil spill was not the only cause of damage to the coastal region of the Federal
States of Albacares..............................................................................................15
C. The courts of Repelmuto have the exclusive jurisdiction to determine the issue of
compensation for damages suffered as a result of the oil spill which occurred in
the Gulf of Sedna.................................................................................................15
ii. The Federal States of Albacares failed to exhaust its local remedies.......16
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Convention on the Law of the Sea, Dec. 10, 1982, 1833 U.N.T.S 3................................ix,1, 2, 6,
Vienna Convention on the Law of Treaties, May 23, 1969, 1155 U.N.T.S. 331...........................1
B. U.N DOCUMENTS
Responsibility of States for Internationally Wrongful Acts, G.A. Res. 56/83, Annex,
U.N. Doc. A/RES/58/83/Annex (2002)…………………………………………………...……...5
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Leatch v. National Parks and Wildlife Service (1993) 81 LGERA 270 at 282.............................11
North Sea Continental Shelf Cases ICJ Reports, 1969, pp.3, 25; 41 ILR,
pp 29, 54.........................................................................................................................................1
Nuclear Tests Case (New Zealand v. France) 1974 I.C.J. 457 General
List No. 59 December 20, 1974....................................................................................................12
U.S. Diplomatic And Consular Staff in Tehran Case (US v Iran) ICJ Reports 1980,3………….8
D. SCHOLARLY WRITINGS
Birnie & Boyle, International Law and the Environment 110 (2002).........................................2, 8
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E. MISCELLANEOUS
Guiding principles Applicable to Unilateral Declarations of States, capable
of creating legal obligations, with commentaries thereto (2006)...........................................13, 14
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Pursuant to Article 40(1) of the Statute of the Court1, this Honourable Court has
jurisdiction (ratione personae ,ratione temporis, ratione loci and ratione materiae) to hear cases
of a legal nature submitted to it by States. The Republic of Repelmuto and the Federal States of
Albacares submit the controversy concerning the Oil Pollution in the Marine Environment for
final resolution by the International Court of Justice. The parties have agreed to the contents of
the Record submitted as part of the Special Agreement, which was signed on June 16, 2010 and
submitted to the Registrar of the Court2. On June 30, 2010, the Registrar addressed the
notification of the parties. All parties accept the jurisdiction of this Court without reservation in
accordance with article 36(2) of the Court’s Statute. Any judgment will therefore be final and
1. Whether the Republic of Repelmuto acted in accordance with its treaty obligations and
2. Whether the Republic of Repelmuto was responsible for the oil spill in the Gulf of Sedna
3. Whether the methods used by the Republic of Repelmuto to stop the spill were
reasonable.
4. Whether the Republic of Repelmuto is liable to pay compensation to the Federal States of
Albacares.
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V. STATEMENT OF FACTS
population of 10 million people, concentrated along the coastline. The coastline is heavily used
for commercial, sporting and subsistence fishing, agriculture and tourism. In an attempt to
develop its tourism product and take advantage of its ecosystems and relatively pristine beaches,
the government has subsidized the construction of hotels and beach resorts.3 High water
with a population of approximately 220 million.4 As a member of the United Nations and
member of the International Maritime Organisation (IMO), it has signed the United Nations
Convention on the Law of the Sea (UNCLOS).5 It is a party to the International Convention for
the Prevention of Pollution from Ships, 1973, as modified by the Protocol of 1978 (MARPOL) 6
and the Convention on Biological Diversity (CBD)7. Repelmuto has also fully participated in
Repelmuto relies on energy resources importing 65% of its petroleum.9 This prompted
the government to authorise the increase of oil exploration, drilling and extraction within its
Exclusive Economic Zone (EEZ) in the Gulf of Sedna to become more energy independent.10
3 Record ¶ 2.
4 Record ¶ 2.
5 Convention on the Law of the Sea, Dec. 10, 1982, 1833 U.N.T.S 3.
6 Record pg. 3.
8 Record ¶ 10.
9 Record ¶3.
10 Record ¶4.
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These activities are regulated by the Minerals Extraction Agency (MEA), which grants licenses
to private companies. 11
On February 02, 2009, there was an explosion in the Gulf of Sedna on the Blue Ocean oil
rig, owned by Fahy Oil.12 Crude oil flowed from the broken wellhead into the Gulf. Albacares
was promptly notified about the spill and kept informed about the efforts to stop it.13 Eight days
later, after initial attempts by Fahy Oil failed to halt the flow, the Repelmuto Environmental
Protection Organisation (REPO) authorised the use of the chemical dispersant, ChemEx-500014
On February 17, 2009, the first diplomatic note sent to Repelmuto by Albacares
requested that all necessary measures to stop the oil flow be taken and the use of ChemEx-5000
halted. Ambacares also outlined the negative impact of ChemEx-5000 on its marine life.16
Repelmuto responded on February 27 2009 assuring that it was taking all available actions to
stop the flow. On March 10, 2009, newly elected Albacarean President Elle Kempii in a national
address, stated that Fahy Oil would pay and those persons injured in Albacares would be
compensated for damages incurred.17 This was re-affirmed by the Minister of REPO one week
later. On March 25, 2009, President Kempii repeated her statement in Albacarean language in a
press conference.18
11 Record ¶12.
12 Record ¶16.
13 Record ¶18.
14 Record ¶19.
15 Record ¶21.
16 Record ¶20.
17 Record ¶24.
18 Record ¶26.
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On July 04, 2009 Fahy Oil succeeded in halting the oil flow, after having released
approximately 7,600 kilolitres of ChemEx-5000 into the Gulf of Sedna.19 The oil spill had
devastating economic and environmental effects in both Albacares and Repelmuto.20 On August
28, 2009, a diplomatic note was sent to Repelmuto asserting that it had breached its international
duty to avoid transboundary harm and requesting negotiations over compensation for damages
incurred.21 The final note from Repelmuto to Albacares on November 02, 2009 asserted Fahy
Oil, which filed for bankruptcy protection, was the responsible party liable for compensation.
After failed negotiations between the parties, the States submitted the case to the
19 Record ¶28.
20 Record ¶29, 30.
21 Record ¶31.
22 Record ¶ 36.
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The Republic of Repelmuto has consistently acted in accordance with its international
obligation to protect the environment. It was not responsible for the oil spill on February 02,
2009, from the Blue Ocean oil rig owned by Fahy Oil Company. The negligence of the Fahy Oil
Company was the sole cause of the injury to the marine environment shared by the Republic of
In compliance with its international obligations, Repelmuto ensured that a regulatory and
administrative framework was set up for the operation of its drilling activities. Its use of
ChemEx-5000 in response to the threat posed by the oil spill was a necessary precaution and in
compliance with its obligations under international law. The government of Albacares was
always kept fully informed of the developments related to the scale of the threat posed by the oil
The Federal Sates of Albacares is therefore not entitled to compensation from the
Repelmutan government. The Republic of Repelmuto exercised its right to exploit its natural
resources in furtherance of domestic economic policies whilst acting in a manner that protected
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VII. ARGUMENTS
A State’s signature is an intermediary step in the adoption of the text a treaty.23 It is not
the final expression of consent to be bound by its terms, unless otherwise intended, since this
remains subject to ratification.24 Ratification is an act by which a State signifies its agreement to
be legally bound by the terms of a particular treaty.25 The obligations placed on a State that has
not ratified a treaty are different to those placed on States that have ratified treaty provisions. The
sole obligation of a State that has signed a treaty is to act in good faith and refrain from acts
A. The Republic of Repelmuto did not ratify the UNCLOS and is therefore not
bound by its provisions.
The Republic of Repelmuto has signed but it has not ratified the United Nations
UNCLOS).27 In the North Sea Continental Shelf Cases,28 this Court held that a State was under
government is not bound by the terms of the UNCLOS. The duties placed on States who have
ratified the UNCLOS should not be applied to Repelmuto. It ought not to be held liable for any
23 Vienna Convention on the Law of Treaties, May 23, 1969, art.11 & 12, 1155 U.N.T.S. 331.
24
Ibid.
25
United Nations Treaty Collection, Treaty Reference Guide, 1999.
26
supra note 23, art.18.
27
Supra note 5.
28
North Sea Continental Shelf Cases ICJ Reports, 1969, pp.3, 25; 41 ILR, pp 29, 54.
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Article 194 of the UNCLOS, for example, addresses measures to prevent, reduce and
control pollution of the marine environment. It imposes on States a duty to police or regulate,
to the fullest possible extent, activities which may result in the pollution of the marine
environment.29 This absolute standard of care does not adequately take into account the need to
balance a State’s developmental goals with its duty to the environment.30 As a result, the
application of this provision would place too heavy a burden on Repelmuto’s fledgling oil
industry.
Customary International Law (CIL) is consistent and uniform usage of a rule or custom
practiced by States that occurred in a manner showing a general recognition that a legal
obligation is involved.31 It is, however, found not only in the practice of States but is to be
looked for in their opinio juris.32 When applied to international environmental law, a State has a
duty to use its territory in a manner that will not cause injury to the territory of another.33
Principle 2 of the Rio Declaration34 and principle 21 of the Stockholm Declaration35 recognise
the State’s sovereign right to exploit its resources pursuant to developmental policies, once it is
able to ensure that it does not cause transboundary environmental damage. In the Advisory
Opinion in the Legality of the Threat or Use of Nuclear Weapons36, this Court also recognised
that the obligation placed upon States to ensure that the activities within its jurisdiction and
29
supra note 22, art.194(3).
30
Birnie & Boyle, International Law and the Environment 110 (2002).
31
Asylum Case (Columbia v. Peru) ICJ Reports, 1950, .266.
32
Libya-Malta Continental Shelf Case, ICJ Reports, 29-30.
33
Trail Smelter Arbitration (US v. Canada) 3 RIAA, (1941) 1905.
34
Rio Declaration on Environment and Development, U.N. Doc.A/CONF.151/26 (1992).
35
Stockholm Declaration on the Human Environment, U.N. Doc.A/CONF.48/14/ Rev. 1(1973).
36
(1996) ICJ Reports 226, at para 29.
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control respect the environment of other States is a part of the corpus of international law relating
to the environment.
high-level representatives at both the Rio and Stockholm conferences.37In addition, Repelmuto
has enacted legislation, formulated regulations and policies to ensure compliance with this
principle. The MEA was established as a regulatory body to ensure adherence to the legal
framework. The requirement that oil rigs, like Blue Ocean, have hard-wired controllers and
““Dead Man”” switches was geared at ensuring that the marine environment of the Gulf of
Sedna was protected in the event of any damage to the oil rig drill pipes.
The International Convention for the Prevention of Pollution from Ships (MARPOL)38
does not regulate oil spills arising from offshore oil-drilling facilities. Though Article 2 defines a
ship as a fix or floating platform39, the type of discharge the treaty seeks to regulate does not
include the release of harmful substances directly arising from the exploration, exploitation and
Republic of Repelmuto is a Member State of the International Maritime Organization, the body
responsible for the enforcement of the MARPOL, this treaty does not have any application to
incidents like the oil spill in the Gulf of Sedna. The Federal States of Albacares have also
37
Record ¶10.
38
International Convention for the Prevention of Pollution from Ship (MARPOL), 1973, as modified by the
Protocol of 1978.
39
Id. at art.2.
40
Id. at Summary.
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conceded that MARPOL therefore does not cover Blue Ocean, the oil rig located in the Gulf of
Sedna.41
A. The Oil Spill in the Gulf of Sedna was solely caused by the negligence of Fahy
Oil Company.
The explosion on the Blue Ocean rig on February 2nd, 2009, and the subsequent flow of
oil into the Gulf of Sedna, established a prima facie case of negligence.42 On the evidence as it
stands, it is more likely than not that the cause of the accident was an act or omission by Fahy
Oil Company, as owners of the rig. Whilst MEA regulated the Repelmutan oil industry, it was
not directly involved in the process of extracting oil from the seabed. This process was solely
The company, through its workers, had been warned of its faulty safety systems in the
days leading up to the explosion44. However, they failed to take note of these warnings and also
failed to ensure that the ““Dead Man”” switch was outfitted with a fully-functioning battery.45 It
is important to note that if the switch had been operational, the flow of oil from the rig would
have been cut-off. The Fahy Oil Company failed to ensure that it was in compliance with the
safety regulations governing the extraction of oil in the Repelmutan EEZ. As a consequence,
Fahy Oil Company remains solely liable for the oil spill and the damage done to the marine
environment of both the Republic of Repelmuto and the Federal States of Albacares.
41
Record ¶33.
42
Halsbury’s Laws of England/Negligence (Volume 78(2010) 5 th Edition)/3.
43
Record ¶16.
44
Clarifications Answer#12.
45
Record ¶16.
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i. Fahy Oil was not acting under the direction or control of the
Republic of Repelmuto.
A State is not generally responsible for the conduct of private citizens or entities.
However, the conduct of a person will be attributable to the State under international law if: the
person or private entity is in fact acting under the direction or control of the State in carrying out
the conduct;46 or the private person or entity is acting on specific instructions of the State in
carrying out a wrongful act.47 In the Case concerning Military and Paramilitary Activities In and
Against Nicaragua,48 it was held that the conduct of a private entity can only give rise to legal
responsibility on the part of the State where it had effective control of the operations in the
course of which the act in question was committed. To satisfy the requirement of attribution, it
is not merely sufficient that the State had overall control over the entity.49
Fahy Oil was a company incorporated under the laws of Repelmuto.50 The Repelmutan
government, through the MEA, controlled and regulated the oil industry, in which Fahy Oil
operated as a private company. It cannot be concluded from the mere fact of the control
exercised by a State that the State necessarily knew, or ought to have known of any unlawful act
perpetrated therein.51 Neither the MEA nor the government was directly involved in the oil
drilling process. This activity was exclusively under the control of Fahy Oil, therefore, any
46 Draft Articles on Responsibility of Sates for Internationally Wrongful Acts with commentaries, 2001, 42-43.
47
Responsibility of States for Internationally Wrongful Acts, G.A. Res. 56/83, Annex, U.N. Doc.
A/RES/58/83/Annex (2002), art 8.
48
Case Concerning Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v. US) ICJ Reports
1986, 14.
49
Ibid, 64-65.
50
Record ¶ 14. supra 45.
51
Corfu Channel Case (UK v. Albania) ICJ Reports, 1949, 4.
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ii. Fahy Oil should be held liable for the injuries suffered by the
Federal States of Albacares as a result of the oil spill.
environmental devastation violations. There is significant support for the contention that
violations under customary international law.52 The voluntary acceptance of code of conduct by
TNCs based on international environmental law and the increasingly uniform practice of States
holding corporations legally liable violations of environmental laws, further demonstrates that
Even long-standing multilateral treaties, such as the 1969 Convention on Civil Liability for Oil
Pollution Damage provides that the owner of a ship (which may be a company) shall be liable for
any pollution damage caused by it.54 The UNCLOS also prohibits not only States but natural and
juridical persons from appropriating parts of the seabed or its minerals.55 This trend should be
upheld by this Honourable Court considering the unprecedented economic and environmental
The two devises required by the MEA were sufficient to trigger the blowout preventer
and stop the flow of oil in the event that the connection between the oil rig and the subsea unit
52
Kathleen Morris, The Emergence of Customary International Law Recognizing Corporate Liability for Violations
of International Human Rights and Environmental Law, Gonzaga Journal of International Law, .
53
supra note 50.
54
International Convention on Civil Liability for Oil Pollution Damage (1969), art III.
55
supra note 26, art 137(1).
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was severed.56 There is no established rule of customary international law requiring the use of
anything more than a ““Dead Man”” switch and a “hard-wired” controller. A rule or principle is
only transformed into customary international law when there has been extensive and virtually
uniform State practice, including that of States whose interests are specially affected57. The use
of the acoustical trigger by both Brazil and Norway, as asserted by the Albacares,58 is
insufficient evidence of extensive and uniform State practice, to transform the use of this device
states to implement national strategies, plans and programs to ensure the sustainable use of the
environment in accordance with its particular conditions and capabilities.60 This requirement is
stated in broad terms and highlights the wide margin of discretion given to States in satisfaction
of this requirement.
The infancy of the Repelmutan oil industry was a condition that required the government
to be more flexible in its regulatory framework. The MEA was an integral part of this system; it
regulated all oil exploration, drilling, and extraction within Repelmuto.61 Its duties also extended
to the inspection of the companies’ operations to ensure that all laws, regulations, and policies
56
Record ¶11.
57
supra note 30.
58 Record ¶33.
60 supra note 6.
61 Record ¶12.
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were adhered to.62 The MEA therefore functioned as the Republic of Repelmuto’s administrative
arm, enforcing its legislative policies and ensuring compliance with its international obligations.
C. The actions of the MEA did not amount to a breach of the Republic of
Repelmuto’s International Obligations.
which is inconsistent with what is required of that State by one or more of the international
obligations binding upon it.63 States must take the appropriate steps to ensure domestic
Repelmuto was required under CIL to set up the necessary domestic controls to ensure
the protection of the marine environment.66 The MEA’s failure to conduct rigorous inspections
of rigs in the Gulf in Sedna, between 2001-2008 and its suspected conflict of interest may be
government in 2008, the Repelmutan government took the appropriate steps to investigate and
A duty is imposed on States by CIL to provide other States with notification once they
become aware of imminent or actual pollution of the marine environment. 67Article 14.1(c) of the
62 Ibid.
63
Halsbury's Laws of England/International Law Relations (Volume 61 (2010) 5th Edition)/12.
64
U.S. Diplomatic And Consular Staff in Tehran Case(US v Iran) ICJ Reports 1980, p.3
65
Ibid.
66
supra note 32 & 33.
67
Birnie & Boyle, International Law & The Environment, (2002) at377-378.
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CBD, requires contracting parties to promote the notification of information on activities under
their jurisdiction or control which are likely to significantly affect adversely the biological
international law, even if the emergency is not directly attributable to the state’s action or
inaction.69
The government of Repelmuto promptly notified the Federal State of Albacares of the
explosion and subsequent oil spill aboard the Blue Ocean rig.70 The Repelmutan government
kept the Federal State of Albacares fully informed about the state of the spill, the projected flow
and movement of the oil and Repelmuto’s efforts to stop it.71 The Republic of Repelmuto
approach. This may be done without delay, to protect the environment from the threat of serious
harm, even where there is no scientific information.72 The proposed measures must, however, be
precautionary principle is triggered by two conditions precedent: the threat of serious harm; and
a lack of scientific evidence as to the effects of the methods used to address the threat. These
threats are cumulative in application but once satisfied, the principle may be applied.73
i. The threat posed by the oil spill to the Gulf of Sedna was
sufficiently severe to allow the application of the precautionary
principle.
A threat to the environment may be considered sufficiently grave where it reaches the
threshold of serious or irreversible harm.74 This assessment of the severity of the threat posed
must, however, be made on the basis of scientific evidence.75 The evidence must be more than
subjective belief or unsupported speculation. The requirement for evidence that pertains to
oil flowed into the gulf of Sedna as a result of the damage to the Blue Ocean rig. Though more
precise estimates were not available78, this quantification of the oil that threatened the marine life
in the gulf, and the coast of both Albacares and Repelmuto, was sufficient scientific evidence to
73
Telstra Corporation Ltd v. Hornsby Shire Council [2006] NSWLEC 133.
74
Ibid.
75
Monsanto Agricoltura Italia v Presidenza del Consiglio dei Ministri, European Court of Justice, Case C-236/0
(13 March 2003) 138.
76
509 U.S. 579, 113 S.Ct. 2786 U.S.Cal.,1993.
77
Record ¶17.
78 Ibid.
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ii. The threat posed to the Gulf of Sedna by the use of Chem-Ex
5000 was scientifically uncertain and therefore allowed the
application of the precautionary principle.
The second condition precedent required for the application of the precautionary
principle is "a lack of full scientific certainty". That is, uncertainty as to the nature and scope of
the threat of environmental damage by the proposed measure.79 The Repelmuto Environmental
Protection Organization (REPO) admitted that ChemEx 5000 had never been used at the depths
required to stop the flow of oil.80 They also acknowledged that the long-term effects on aquatic
life were unknown.81 The Republic of Repelmuto was therefore unaware of the precise nature of
the damage that might occur as a result of the use of ChemEx. This, coupled with the gravity of
the threat posed by the plum of oil, was sufficient to trigger the application of the precautionary
principle.
B. The use of ChemEx-5000 was proportionate to the threat posed to the eco-
system of Repelmuto and Albacares.
measures and the seriousness and irreversibility of the potential threat. The degree of uncertainty
must also be taken into account in this weighing process. 82 Where the relevant degree or
magnitude of potential environmental damage is greater, the degree of certainty about the threat
is lower.83
79
Leatch v National Parks and Wildlife Service (1993) 81 LGERA 270 at 282.
80 Record ¶19.
81
Record ¶18.
82
Guidelines for Applying the Precautionary Principle to Biodiversity Conservation and Natural Resource
Management; Resolution MEPC 67(37).
83
Telstra Corporation Ltd v Hornsby Shire Council (2006) NSWLEC 133.
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The danger posed by the oil spill to the Gulf of Sedna could potentially eradicate its
marine environment if left untreated and have severe long-term impact on the economy of the
coastal States. The tourism industry in the Republic of Repelmuto, was hit by the closure of
coastal hotels and restaurants as a result of tar balls washing ashore. 84 The local fishing industry
collapsed, commercial and recreational fishing was banned and dead zones appeared throughout
the EEZ. Coastal marshes died, and marine and bird nurseries destroyed 85. Every type of plant
On the other hand, while the effects of ChemEx-5000 were unpleasant, they were not as
severe. Seven thousand six hundred (7600) kiloliters of Chem-Ex were used to stem the massive
plum of oil that had threatened to swallow the Gulf of Sedna. Approximately thirty-five (35)
percent of the organisms living 500 feet below the surface died86.The use of ChemEx-5000 did
not cause as much damage as the oil spill itself. Its use in the gulf of Sedna was therefore
A State may be bound by the unilateral statements of the members of its government,
where the circumstances surrounding the making of the statement evince an intention that it
84
Record ¶29.
85
Ibid.
86 Record ¶30.
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would be bound by the terms of the declaration87. It makes no difference whether the statement is
made orally or in writing88. In the case concerning the Frontier Dispute (Burkina Faso v.
Republic of Mali), this Court was careful to point out that “it all depends on the intention of the
State in question”.89
declarations representing the position of the Republic of Repelmuto. A similar effect may be
given to statements made by other members of the government functioning under her authority.
These two types of statements, viewed as a whole, may constitute an engagement of the State.
Consideration must, however, be given to the intention and the circumstances in which they were
made.90
identify Fahy Oil Company as the party liable for the oil spill.91 The only commitment made by
the government of Repelmuto was that it would ensure that Fahy Oil Company compensated the
people of Repelmuto. The statements of the President and the Minister of REPO assuring the
people of Albacares that they would be compensated for the injury suffered as a result of the oil
The people of Repelmuto were upset at Fahy Oil’s failure to stem the flow of oil. The
Repelmutan coast had also been badly affected by the spill and had even been declared a “dead
87
Nuclear Tests Case (New Zealand v. France) 1974 I.C.J. 457 General List No. 59 December 20, 1974.
88
Guiding principles Applicable to Unilateral Declarations of States, capable of creating legal obligations, with
commentaries thereto (2006), principle 5.
89
Case concerning the Frontier Dispute (Burkina Faso v. Republic of Mali), Judgment of 22 December 1986,
I.C.J. Reports 1986, p. 573, para. 39.
90 Legal Status of Eastern Greenland (Denmark v. Norway) 1933 P.C.I.J Reports Series A/B No. 53.
91
Record ¶24.
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zone”. In light of the vast devastation to its economy caused by the oil spill, Repelmuto could not
Federal States of Albacares for the damage suffered as a result of the oil spill. The Repelmutan
government simply sought to officially assure the people of Albacares that they would assist in
resolving the spillage and ensuring that compensation is obtained from the Fahy oil company.
ii. The diplomatic notes sent by the Republic of Repelmuto to the Federal
States of Albacares did not disclose an intention to provide
compensation.
In order to determine the legal effects of such statements, it is necessary to take account
of their content, of all the factual circumstances in which they were made, and of the reactions to
which they gave rise.92 In the Military and Paramilitary Activities in and against Nicaragua and
Frontier Dispute cases, the Court found nothing in the content of the declarations cited or the
circumstances in which they were made “from which it [could] be inferred that any legal
undertaking was intended to exist”.93 The same conclusion should be drawn in this case.
Repelmuto continually asserted that the statements made by its President did not create
any legal obligations. After the President’s statements, the diplomatic notes sent to the Federal
States of Albacares, carefully explained the reasons why Repelmuto could not be held liable for
the damage caused by the oil spill. The diplomatic documents clearly identified Fahy Oil
92
Guiding principles Applicable to Unilateral Declarations of States, capable of creating legal obligations, with
commentaries thereto (2006), principle 3.
93
Case concerning Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of
America), Judgment of 27 June 1986, I.C.J. Reports 1986, p. 132, para. 261, and Case concerning the Frontier
Dispute (Burkina Faso v. Republic of Mali), I.C.J. Reports 1986, 573, para. 39.
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Company as the party responsible. Repelmuto’s only commitment was to work with the people
of Albacares to ensure that Fahy Oil provided adequate compensation in accordance with the
laws of Repelmuto.94
B. The oil spill was not the only cause of damage to the coastal region of the
Federal States of Albacares.
compensation due by a State found liable, only the value of the property, rights and interests of
the injured State must be taken into account.96 As such, the Court must be mindful of the
condition of the property before the damage occurred. In this case, the health of Albacares’ coral
reefs were on the decline in recent years.97 The extent of this decline, at the time of the oil spill,
must be determined and deducted from any compensation that may be awardable to the Federal
States of Albacares.
international law.98 Under local law, the courts of Repelmuto All wrongful acts committed
within the territorial jurisdiction of a State may come before the municipal courts. Repelmuto is
ii. The Federal States of Albacares failed to exhaust its local remedies.
The general rule of international law and long established principle of practice is that
States must exhaust domestic remedies before invoking the jurisdiction of the International
Court.99 The rationale for the exhaustion rule is to afford the national courts, the opportunity to
prevent or put right the alleged violations. In any case where the question of compensation gives
rise to a controversy, the national jurisdiction of the State taking such measures shall be
exhausted.100 The importance of the exhaustion of domestic remedies was underscored by the
allows the State to remedy the breach before it is brought on the international arena.101 While
decisions of that Court are not binding on this Court, it is submitted that it represents an accepted
There were effective and available remedies available to the Federal States of Albacares.
The Albacarean government had the option of requesting that the Republic of Repelmuto
allowed Fahy Oil to face legal proceedings within their jurisdiction. In that case, Albacares
would have been able to block Fahy Oil’s assets to satisfy any plausible judgments and establish
a pro-rata distribution system for the remaining funds. Any doubts about the effectiveness of the
domestic remedies available to the Federal States of Albacares did not absolve it from exhausting
99
The Interhandel case (Switzerland v. United States), judgment of 21 March 1959.
100
Resolution on Permanent Sovereignty over National Resources G.A.Res. 1803 (XVII) 1962, para 4; 17 UN
GAOR Supp(No. 17_, pp15-16.
101
Fairén-Garbi and Solís-Corrales v. Honduras, 1987 Inter-Am. Ct. H.R. (ser. C) No.2 , ¶ 85 (June 26, 1987).
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Team 1133R
them. Any holding by the Albacarean courts can affect the reputation of Fahy Oil for compliance
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Team 1133R
The Republic of Repelmuto humbly requests this Honourable Court to adjudge and declare that:
1. The Republic of Repelmuto upheld its international legal obligations under the UNCLOS,
2. The Republic of Repelmuto was not responsible for the oil spill and the effects thereof;
Respectfully Submitted
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